The 6th Circuit Court of Appeals today upheld the bans on same-sex marriage in Michigan, Ohio, Kentucky and Tennessee, becoming the first appeals court to do so and virtually guaranteeing that the Supreme Court will take up the issue early next year. It was a split decision, 2-1. The majority opinion said, in part:
What remains is a debate about whether to allow the democratic processes begun in the States to continue in the four States of the Sixth Circuit or to end them now by requiring all States in the Circuit to extend the definition of marriage to encompass gay couples. Process and structure matter greatly in American government. Indeed, they may be the most reliable, liberty assuring guarantees of our system of government, requiring us to take seriously the route the United States Constitution contemplates for making such a fundamental change to such a fundamental social institution.
Of all the ways to resolve this question, one option is not available: a poll of the three judges on this panel, or for that matter all federal judges, about whether gay marriage is a good idea. Our judicial commissions did not come with such a sweeping grant of authority, one that would allow just three of us—just two of us in truth—to make such a vital policy call for the thirty-two million citizens who live within the four States of the Sixth Circuit: Kentucky, Michigan, Ohio, and Tennessee. What we have authority to decide instead is a legal question: Does the Fourteenth Amendment to the United States Constitution prohibit a State from defining marriage as a relationship between one man and one woman?…
And all come down to the same question: Who decides? Is this a matter that the National Constitution commits to
resolution by the federal courts or leaves to the less expedient, but usually reliable, work of the state democratic processes?
On the substance, the appeals court relied on Baker v Nelson, a 1972 case involving same-sex marriage in which the Supreme Court denied cert in a case with a one-word order that said the case did not raise “a substantial federal question.” The court then says:
This type of summary decision, it is true, does not bind the Supreme Court in later cases. But it does confine lower federal courts in later cases. It matters not whether we think the decision was right in its time, remains right today, or will be followed by the Court in the future. Only the Supreme Court may overrule its own
precedents, and we remain bound even by its summary decisions “until such time as the Court informs [us] that [we] are not.” The Court has yet to inform us that we are not, and we have no license to engage in a guessing game about whether the Court will change its mind or, more aggressively, to assume authority to overrule Baker ourselves.
Other appeals courts, all of them that have taken up the issue in fact, have all concluded otherwise. So what does this mean? It means we now have a circuit split, which means the Supreme Court will now almost certainly take up one of these cases, consolidate all the others with it, and decide the issue, hopefully once and for all. Expect cert petitions to be filed quickly, accepted and oral argument to be heard probably in February or so and a ruling on the last day of the term in June. The Supreme Court will want to avoid having such a ruling come down in 2016, a presidential election year.
My prediction remains the same, a 5-4 ruling overturning all such laws and declaring an Equal Protection right for gay couples to marry, written by Justice Kennedy. You can read the full 6th Circuit ruling here.